Administrative law – Decisions of administrative tribunals – Ministerial orders – Judicial review – Schools and school boards – Charter of Rights and Freedoms – Freedom of Religion
Loyola High School v. Quebec (Attorney General),  S.C.J No. 12, 2015 SCC 12, Supreme Court of Canada, March 19, 2015, McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Since 2008, the Respondent, the Minister of Education, Recreation and Sports (the “Minister”), has required high schools in Quebec to include a program on ethics and religious culture (the “ERC Program”). The ERC Program teaches about the beliefs and ethics of different world religions from a neutral perspective. The Minister has the discretion to exempt private schools from the ERC Program if they offer an alternative program that the Minister deems to be equivalent.
The Appellant, Loyola High School (“Loyola”), is a private Catholic high school. In March 2008, Loyola applied for an exemption from the ERC Program. Loyola proposed an alternative program that placed greater emphasis on Catholic beliefs and ethics. In August 2008, the Minister denied Loyola’s request for an exemption because the proposed alternative program was not equivalent to the ERC Program. In August 2008, Loyola sent a follow-up request attempting to explain how its proposed program was equivalent to the ERC Program. In November 2008, the Minister denied the follow-up request citing 6 bases for the refusal.
Loyola brought an application for judicial review. Loyola argued that the “normative pluralism” underpinning the ERC Program was a violation of freedom of religion because it was incompatible with Loyola’s character as a Catholic school. The Judge concluded that the Minister’s decision was incorrect and constituted an unjustified violation of Loyola’s right to religious freedom. The Quebec Court of Appeal unanimously overturned the decision, relying on the Supreme Court of Canada’s decision in Doré and deciding that the ERC Program did not interfere with religious freedom in any substantial manner.
The majority of the SCC held that the Minister’s decision (in requiring all aspects of the ERC Program to be taught from a neutral perspective) limited freedom of religion more than was necessary. The matter was remitted to the Minister for reconsideration.
The majority confirmed the applicable legal test: whether the Minister’s decision reflected a proportionate balance between the objectives of promoting tolerance and respect for difference, and the religious freedom of the Loyola members.
The majority found that the Minister’s decision was unreasonable because it was disproportionate. By forcing religious schools to teach their own religions from a non-religious perspective, the Minister was not advancing the ERC Program goals of encouraging respect for others and openness to others.
The majority also would have held that it was reasonable for the Minister to require Loyola to teach about the ethics of other religions in a neutral way.
The minority also allowed the appeal because the Minister’s decision was unreasonable. However, the rationale for that decision, and the remedy, were different.
The minority emphasized that there are individual and collective aspects to the freedom of religion. The legislative and regulatory scheme was intended to respect the religious freedoms of individuals and groups in the school system. The purpose of the Minister’s discretion is to protect against situations where a purely secular curriculum may violate the Charter.
The minority concluded that the Minister’s decision infringed Loyola’s right to religious freedom and the infringement could not be justified. The minority would have ordered that the Minister grant an exemption to Loyola.
The appeal was allowed and the matter was remitted back to the Minister for reconsideration.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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